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Roots of Judicial Overreach!
|by Dr. Rajinder Puri|
The Supreme Court (SC) responding to the government’s interference in the CBI’s Coalgate investigation has demanded that the government must ensure by next July that structural changes in the administrative machinery enable the CBI to function independently. With all due respect to the SC is it any business of the Judges to direct the executive or the legislature about what the administrative structure ought to be? The business of the court is confined to judging whether the law of the land is being observed or not. No more, no less.
Judges are qualified to interpret the law. They are not necessarily qualified to assess the architecture of governance or the efficacy of policies related to public welfare. But the collapse of governance under a corrupt and inefficient executive has created a dangerous and unhealthy situation of frequent judicial overreach. Sadly, the public frustrated by executive incompetence, has started to look forward to such judicial overreach with approval. The long term damage to our democratic system arising from frequent judicial overreach can be incalculable.
Recall how the tendency for judicial overreach began.
The Jain Hawala Case decades ago was the game changer. Journalists Sanjay Kapur of Blitz weekly, and Ram Bahadur Rai and Vineet Narain of Jansatta daily published sensational information about contents of a diary seized by the police during investigation of a Hawala transaction involving illegal money transfers from abroad partly to fund terrorists in Kashmir. The diary contained names and amounts paid to over 40 national political leaders from the same illegal sources. Vineet Narain along with lawyers Prashant Bhushan and Kamani Jaiswal as co-petitioners petitioned the SC complaining about an inadequate official investigation. Chief Justice Venkatachalaiyah admitted the petition. He retired and Chief Justice JS Verma succeeded him to preside over the bench hearing the case.
The SC Bar Council charged Narain with contempt of court. The lawyer of the petitioners, Anil Diwan, who had been appointed amicus curiae in the case, was furious over the publication of the article. Astonishingly the charges were neither proved nor disproved. The SC dismissed the contempt case after a mild warning to Vineet Narain.
The SC during the Emergency ruled that a citizen did not have the fundamental right to life and liberty. After the Emergency the same SC somersaulted to rule that he did. The SC ruled that the President is a titular head like the British Sovereign with nothing in our written Constitution to justify this opinion that has severely damaged our democratic system. More recently the SC passed the laughable and absurd ruling that the Army Chief of Staff should operate simultaneously by the use of two different dates of birth.
Very recently giving its ruling on a petition challenging Foreign Direct Investment (FDI) in Retail the SC stated:
That is how it should be. The SC should confine itself to interpreting and preserving the law. But in the same ruling the SC went on to praise FDI in Retail for being a good policy beneficial to consumers.
I have written in favour of FDI in Retail. But there are learned and seasoned politicians and analysts who have expressed serious reservations about the policy. Is it appropriate for the judges to enter the fray of a national policy debate to lend their weight…?
Judges should understand their limitations. Judicial overreach is not part of the solution to our current crisis. It is part of the problem. Our system has collapsed. Judges dabble in governance, politicians run illegal business, and businessmen manage politics and media. Various judicial errors do not attract adequate criticism because there are laws of contempt which inhibit critics. Judges certainly deserve the highest respect. But that respect cannot be legislated. It has to be earned.
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Comments on this Article
Dinesh Kumar Bohre
05/15/2013 05:21 AM
05/15/2013 03:34 AM
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